This copy is for your personal non-commercial use only. To order presentation-ready copies of Toronto Star content for distribution to colleagues, clients or customers, or inquire about permissions/licensing, please go to: www.TorontoStarReprints.com

How free should hate speech be?

Freedom of speech is the lifeblood of all constitutional democracies. Without it, democracy readily becomes tyranny of the majority or – even more likely – of the most politically powerful minority. Yet freedom of speech also has limits.

By Amy GutmannPresident of the University of Pennsylvania

Fri., Sept. 4, 2009

Freedom of speech is the lifeblood of all constitutional democracies. Without it, democracy readily becomes tyranny of the majority or – even more likely – of the most politically powerful minority. Yet freedom of speech also has limits.

Political scientists from Canada and the United States are meeting in Toronto for the annual convention of the American Political Science Association (APSA) this weekend. In response to a petition we received earlier this year – on whether Canadian law on "hate speech" and Human Rights Commissions posed a threat to freedom of speech and academic freedom – we are debating the question from perspectives on both sides of the issue, and both sides of the border.

Although Canada and the United States are close-knit constitutional democracies, their limits on free speech differ, especially in the treatment of hate speech. Both provide broad protections of free speech, but the Criminal Code of Canada includes legal penalties against "the wilful promotion of hatred" while U.S. law does not. While meeting in Toronto and pursuing the free exchange of ideas about democratic politics, we thought it fitting to wrestle anew with the question: How free should hate speech be? Comments by professors Keith Whittington, Carissima Mathen, Jeremy Waldron and Robert Post follow:

We are rightfully wary of using governments to regulate speech. It is one possible response, the last available response, and often a response that brings its own share of problems. Legal regulation is often motivated by the extreme case, the obvious case. But once the regulation is in place, it will not be easily limited to the extreme case.

Not long after the adoption of the U.S. Constitution, Congress passed the first federal sedition law, making it a crime to cause "hatred" against the government. In response, the critics of the government, led by Thomas Jefferson, developed new ideas about the role of free speech in a democracy. As they pointed out, and frequently found out, government prosecutors and partisan juries were all too willing to believe that expressing an unpopular opinion in strong terms about the incumbent president was not robust political speech but rather illegitimate hate speech.

Hate speech makes most people recoil, yet in choosing to deal with it through the criminal law we run the risks of being both over-inclusive and ineffective. It can be exceptionally difficult to decide whether a particular expression embodies "hate" as opposed to other strong emotions, such as passion or anger, that have a legitimate place in public debate. In a society marked by diverse groups with different conceptions of the good, we should be especially wary that such laws will be used against those who hold odd or unorthodox beliefs, or are simply slower to accept new social norms. Canada criminalizes hate speech on the basis that it contributes nothing to our society and harms the groups that it targets. If the harm can be addressed through non-criminal means, then resorting to the criminal law is inappropriate. Procedural safeguards do not mitigate the risks posed by a vague and indeterminate law. There is a place for intervention to deal with material that actively subverts rather than enhances public policy, a threshold that our society is entitled to determine. But such intervention ought to be primarily directed at the materials, not the speaker. In the absence of a specific risk of violence or advocacy of unlawful behaviour, hate speech should not be criminalized.

–Carissima Mathen, Professor of Law, University of New Brunswick

Certainly, racist hate speech should be restricted in some circumstances. The publications we call hate speech are often intended to do two things: (1) to defame and attack the dignity, honour and social standing of minorities and their members; and (2) to undermine the assurance that any good society is trying to give to its most vulnerable citizens that they and their families can go about their lives with some basic security against humiliation, discrimination and violence. Perhaps a society with no history of racial, ethnic or religious tension can afford to ignore this. But in the real world, such expressions of hate function as reminders that what has happened in the past might happen again – reminders that are heard differently by members of vulnerable minorities than by members of the secure majority. Dignity and assurance for all are fragile and vulnerable achievements, and well-drafted laws against hate speech, if they are administered carefully through the courts by an attorney general (or by prosecutors who bear proper responsibility for preserving public order), can play an important role in upholding them.

–Jeremy Waldron, University Professor, NYU Law School

All societies regulate uncivil speech regarded as inconsistent with the prerequisites of social solidarity. One question is who is authorized to define such speech. Countries with strong, coherent elites, like Iran or Saudi Arabia, unilaterally define uncivil speech in terms of the ideology of these elites. Self-consciously multicultural societies, like Canada, India or Australia, must also rely on powerful centralized elites to define the rules by which diverse groups shall be permitted to deal with each other. In societies like the United States, in which such elites are weak or fractured, authority to define uncivil speech is correspondingly reduced. A second important variable in the comparative regulation of hate speech is the need for free and undisciplined participation in public discourse in order to secure democratic legitimation among heterogeneous populations. The stronger this need, the more the regulation of hate speech will be reduced. Finally, some states affirm social solidarity based upon the "levelling up" of all citizens to the norms of honour previously associated with aristocratic elites, whereas other societies, like the United States, affirm social solidarity based upon a "levelling down" to mass proletariat manners. The regulation of hate speech is much less urgent in the later circumstances.

–Robert Post, Dean and Sol & Lillian Goldman Professor of Law, The Yale Law School

The Toronto Star and thestar.com, each property of Toronto Star Newspapers Limited, One Yonge Street, 4th Floor, Toronto, ON, M5E 1E6. You can unsubscribe at any time. Please contact us or see our privacy policy for more information.

More from the Toronto Star & Partners

LOADING

Copyright owned or licensed by Toronto Star Newspapers Limited. All rights reserved. Republication or distribution of this content is expressly prohibited without the prior written consent of Toronto Star Newspapers Limited and/or its licensors. To order copies of Toronto Star articles, please go to: www.TorontoStarReprints.com